Olson v. Levi

• Decision Date: 13 October 2015
• Docket Number: No. 20150131.,20150131.
• Citation: 870 N.W.2d 222
• Parties: Patricia Lynn OLSON, Appellant v. Grant LEVI, Director of the North Dakota Department of Transportation, Appellee.
• Court: North Dakota Supreme Court

870 N.W.2d 222

Patricia Lynn OLSON, Appellant
v.
Grant LEVI, Director of the North Dakota Department of Transportation, Appellee.

No. 20150131.

Supreme Court of North Dakota.

Oct. 13, 2015.
Rehearing Denied Dec. 1, 2015.

870 N.W.2d 223

Thomas F. Murtha IV, Dickinson, N.D., for appellant.

Douglas B. Anderson, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for appellee.

Opinion

McEVERS, Justice.

¶ 1] Patricia Lynn Olson appeals from a judgment affirming a decision of the Department of Transportation to suspend her driving privileges for two years. Because we conclude the Report and Notice form was sufficient to give the Department authority to suspend Olson's driving privileges, and because we reject her constitutional arguments, we affirm the judgment.

I

[¶ 2] In the early morning hours of May 16, 2014, Morton County Deputy Sheriff Gordon LeClair provided backup for another officer on a traffic stop in Hebron. Officer LeClair testified that “while [the other officer] was putting his prisoner in the backseat[,] his prisoner wanted me to talk to his friend and say, ‘hey, can they bail him out of jail.’ ” Officer LeClair asked the prisoner, “are they going to be under the influence? He said apparently.” Officer LeClair asked the prisoner “which vehicle is it? And he told me that it was the SUV that was parked by his vehicle.” Officer LeClair approached the vehicle, and noticed a female, identified as Olson, in the driver's seat. According to Officer LeClair, Olson “grabbed her keys, put them in the ignition and rolled down the window approximately an inch.” Officer LeClair noticed

[870 N.W.2d 224

an odor of alcohol coming from the vehicle and Olson admitted she had been drinking. Officer LeClair asked Olson to get out of the vehicle, Olson agreed to take field sobriety tests, and she failed them. Olson refused to consent to a breath test so Officer LeClair arrested her for actual physical control of a motor vehicle. Officer LeClair read Olson the implied consent advisory, after which Olson consented to a blood test. The blood test revealed a blood-alcohol concentration of 0.208 percent.

¶ 3] The Report and Notice form completed by Officer LeClair listed the date of the occurrence and the “Time of Driving/Physical Control/Crash” as “0139” a.m. Officer LeClair listed the county and city of the occurrence and in the line for “Location of Arrest or Where Detained” wrote “Brick City Motel Parking Lot.” Officer LeClair indicated, “On the above date, there existed reasonable grounds to believe that the above-named person was operating ... Non–Commercial motor vehicle.” Officer LeClair checked the box stating Olson “Was lawfully arrested and informed that he or she will be charged with the offense of driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor or drugs.” In the officer's statement of probable cause portion of the form, under the category “Reasonable suspicion to stop or reason lawfully detained,” Officer LeClair checked the box “already stopped” and explained: “A friend wanted me to tell her he would need to be bonded out of jail.” Under the category “Probable cause to arrest/lawfully detain,” Officer LeClair checked the boxes “odor of alcoholic beverage,” “poor balance” and “failed field sobriety test(s),” and explained “odor of alcoholic beverage” and “Failed S.F. St.”

[¶ 4] Olson requested an administrative hearing to contest the Department's intention to suspend her driving privileges. Following the hearing, the Department found Officer LeClair had reasonable grounds to believe Olson was in actual physical control of a motor vehicle while under the influence of alcohol, she was placed under arrest and tested in accordance with the law, and she had an alcohol concentration above the legal limit. The Department suspended Olson's driving privileges for two years and the district court affirmed the Department's decision.

II

[¶ 5] Olson argues the Department erred in suspending her driving privileges.

[¶ 6] In Kroschel v. Levi, 2015 ND 185, ¶ 6, 866 N.W.2d 109, we explained:

“We review an administrative revocation of a driver's license under N.D.C.C. § 28–32–46.” Vanlishout v. N.D. Dep't of Transp., 2011 ND 138, ¶ 12, 799 N.W.2d 397. We must affirm the Department's order unless:

“1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

[870 N.W.2d 225

8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for

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